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AMENDMENT NO. 2
THIS AMENDMENT NO. 2, dated as of December 12, 1996 (the "Amendment")
relating to the Credit Agreement referenced below, by and among NATIONAL MEDICAL
CARE, INC., a Delaware corporation, certain subsidiaries and affiliates party to
the Credit Agreement and identified on the signature pages hereto, and
NATIONSBANK, N.A., as Paying Agent for and on behalf of the Lenders. Terms used
but not otherwise defined shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, a $2.5 billion credit facility has been extended to National
Medical Care, Inc. and certain subsidiaries and affiliates pursuant to the terms
of that Credit Agreement dated as of September 27, 1996 (as amended and
modified, the "Credit Agreement") among National Medical Care, Inc., the other
Borrowers, Guarantors and the Lenders identified therein, and NationsBank, N.A.,
as Paying Agent;
WHEREAS, the Company has requested certain modifications described herein
which require the consent of the Required Lenders; and
WHEREAS, the Required Lenders have consented to the requested
modifications on the terms and conditions set forth herein and have authorized
the Paying Agent to enter into this Amendment on their behalf to give effect to
this Amendment;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
A. The Credit Agreement is amended and modified in the following respects:
1. In the proviso of the first sentence following the pricing grids
in the definition of "Applicable Percentage" in Section 1.1, subsection (i)
shall be modified to read as follows:
(i) the initial Applicable Percentages for Loans and
Obligations (other than the Tranche B Term Loan) shall be based on Pricing
Level IX and shall remain in effect until December 12, 1996 (being the
effective date of Amendment No. 2), at which time the Applicable
Percentages shall be as shown above based on the projected Consolidated
Leverage Ratio (the "Projected Ratio") as of December 31, 1996, calculated
as set forth in a Rate Change Officer's Certificate substantially in the
form attached as Schedule 1 to Amendment No. 2 delivered by Holdings to
the Paying Agent; provided, that if the quarterly compliance certificate
for the period ending as of December 31, 1996
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and related financial statements and information for such period delivered
pursuant to Sections 7.1(b) and Section 7.2(b) demonstrate that the
Consolidated Leverage Ratio as of such date is higher than the Projected
Ratio, with the effect of increasing the Pricing Level, the Applicable
Percentage shall be automatically adjusted for such period in accordance
with such higher Pricing Level and the Borrower shall promptly pay to the
Paying Agent for the Lenders and the Issuing Lender an amount equal to the
difference between the amount of interest and fees actually paid or
payable during the period such Pricing Level was in effect, and the amount
of interest and fees that would have been paid or payable during such
period had the higher Pricing Level been in effect.
2. The maximum aggregate amount of Guaranteed Obligations of
WRG-Conn. was reduced by $800 million to $150 million upon the occurrence of the
Holdings Group Guaranty Joinder Event on November 15, 1996. The remaining $150
million of the Guaranteed Obligations of WRG-Conn. under the Credit Agreement
shall be deemed released in accordance with the provisions of Section 4.10 upon
the delivery to the Paying Agent of the officer's certificate in the form
attached to this Amendment as Schedule 2 (the "Guaranty Release Officer's
Certificate").
3. In clause (i) of the proviso of Section 2.1(a) the phrase "or in
the case of Designated Borrowers, the amount designated in the Borrower Joinder
Agreement approved by the Required Lenders in accordance with Section 3.16(a)
(the "Designated Borrower Limit")" is amended to read as follows:
"or in the case of Designated Borrowers, the amount designated on
Schedule 2.1(a)-2 or in the Borrower Joinder Agreement approved by the
Required Lenders in accordance with Section 3.16(a) (the "Designated
Borrower Limit")"
and the Designated Borrower Limit for National Medical Care of Taiwan, Inc., a
Delaware corporation, as referenced on Schedule 2.1(a)-2 is modified and reduced
from "$50,000,000" to "$20,000,000".
B. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules) remain in full force and effect.
C. The Company agrees to pay all reasonable costs and expenses of the
Paying Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
D. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and its shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
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E. This Amendment, and the Credit Agreement as amended hereby, shall be
governed by and construed and interpreted in accordance with the laws of the
State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
COMPANY: NATIONAL MEDICAL CARE, INC.,
A Delaware corporation
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE AG
By /s/ Xx. Xxxx Xxxxx
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Name: Xx. Xxxx Xxxxx
Title: Chairman of the Managing Board
By /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Member of the Managing Board
The undersigned, being WRG-Conn., joins in the execution of this Amendment
for purposes of acknowledging and consenting to the provisions of Section A(2)
hereof.
X.X. XXXXX & CO.-XXXX.,
a Connecticut corporation
By /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer and
Senior Vice President
PAYING AGENT: NATIONSBANK, N.A.,
as Paying Agent for and on behalf of the
Lenders
By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice President
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GUARANTORS: FRESENIUS NATIONAL MEDICAL CARE
HOLDINGS, INC., a New York corporation
formerly known as WRG-NY
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
BIO-MEDICAL APPLICATIONS
MANAGEMENT CO. INC., a Delaware
corporation
By /s/ Xxxxxx X. Xxxxxxxxx, III
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Name: Xxxxxx X. Xxxxxxxxx, III
Title: Vice President
NMC HOMECARE, INC.,
a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxxxx, III
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Name: Xxxxxx X. Xxxxxxxxx, III
Title: Vice President
LIFECHEM, INC.,
a Delaware corporation
By /s/ Xxxxxx X. Xxxxxxxxx, III
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Name: Xxxxxx X. Xxxxxxxxx, III
Title: Vice President
FRESENIUS MEDICAL CARE AG,
a German corporation
By /s/ Xx. Xxxx Xxxxx /s/ Xxx Xxxxx
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Name: Xx. Xxxx Xxxxx Xxx Xxxxx
Title: Members of the Managing Board
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FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By /s/ Xxx Xxxxx /s/ Xx. Xxxxxxx Xxxxxxxxxxx
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Name: Xxx Xxxxx Xx. Xxxxxxx Xxxxxxxxxxx
Title: Authorized Signatories
FRESENIUS MEDICAL CARE GROUPE
FRANCE, a French corporation (formerly known
as Fresenius Groupe France S.A.)
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Authorized Signatory
FRESENIUS SECURITIES, INC.,
a California corporation
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
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Schedule 1
FORM OF RATE CHANGE OFFICER'S CERTIFICATE
This Certificate is delivered in accordance with the provisions of
subsection (iii) of that definition of "Applicable Percentage" in that Credit
Agreement dated as of September 27, 1996 (as amended, modified and supplemented,
the "Credit Agreement") among NATIONAL MEDICAL CARE, INC., a Delaware
corporation, and certain subsidiaries and affiliates (the "Borrowers"), the
Guarantors identified therein, the Lenders and NationsBank, N.A., as Paying
Agent. Terms used but not otherwise defined herein shall have the meanings
provided in the Credit Agreement.
The undersigned, being a Responsible Officer of FRESENIUS MEDICAL CARE AG,
a German corporation, hereby certifies, in my official capacity and not in my
individual capacity, that to the best of my knowledge and belief:
(a) the historical information accompanying this Certificate is true
and correct in all material respects for the periods covered and the pro
forma information accompanying this Certificate is based on reasonable
assumptions (and there has been no development, situation, change of
circumstance or other condition which would render such assumptions
unreasonable or unrealistic on the whole).
(b) the undersigned has no actual knowledge of any Default or Event
of Default; and
(c) detailed calculations demonstrating the projected Consolidated
Leverage Ratio as of December 31, 1996 accompany this Certificate.
This the __ day of December, 1996.
_____________________________________
Title:
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CONSENT TO AMENDMENT NO. 2
NationsBank, N.A., as Paying Agent
000 X. Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Agency Services
Re: Credit Agreement dated as of September 27, 1996 (as amended and
modified, the "Credit Agreement") among National Medical Care, Inc.,
the other Borrowers, Guarantors and Lenders identified therein and
NationsBank, N.A., as Paying Agent. Terms used but not otherwise
defined shall have the meanings provided in the Credit Agreement.
Amendment No. 2 dated December 12, 1996 (the "Subject Amendment")
relating to the Credit Agreement
Ladies and Gentlemen:
This should serve to confirm our receipt of, and consent to, the Subject
Amendment. We hereby authorize and direct you, as Paying Agent for the Lenders,
to enter into the Subject Amendment on our behalf in accordance with the terms
of the Credit Agreement upon your receipt of such consent and direction from the
Required Lenders.
Sincerely,
_______________________________________
[Name of Lender]
By:____________________________________
Name:
Title:
